Penal Code, 1860 – Ss. 306, 498A r/w. 34 –¬†Evidence Act, 1872 – S. 32 (1) – Dying Declaration does not come into play since cause of death or the circumstances leading to death was not an issue in so far as offence under section 498A of IPC, is concerned.

Held:- Even if the evidence is taken at face value, the prosecution has not established cruelty of the nature and extent which can be the basis of conviction under section 498A of IPC.¬†Cruelty for the purpose of section 498A of IPC is statutorily defined. Cruelty which may be constitute a matrimonial offence may not necessarily be the cruelty envisaged under explanation (a)(b) to section 498A of IPC. The evidence on record must be tested on the anvil of the statutory definition of cruelty and the articulation of the Hon’ble Supreme Court on the scope and ambit of section 498A of IPC.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

CORAM: ROHIT B. DEO, J.

DATE OF PRONOUNCING THE JUDGMENT : 7 th SEPTEMBER, 2017.

CRIMINAL APPEAL NO.17 OF 2000 WITH CRIMINAL APPEAL NO.74 OF 2000 CRIMINAL APPEAL NO.17 OF 2000 1 Purushottam Sitaram Bakal, aged about : 27 years, 2 Sitaram Bhikaji Bakal aged about 55 years, 3 Dwarkabai w/o. Sitaram Bakal aged about : 50 years 4 Rameshwar Sitaram Bakal, aged about : 19 years, All residents of Tiwali, District. Washim. …….APPELLANTS …V E R S U S…The State of Maharashtra, through Police Station Officer Shirpur, ……RESPONDENT Mr. S.A. Bramhe, counsel for appellants.Mr. H.R. Dhumale, Addl. Public Prosecutor for respondent.

CRIMINAL APPEAL NO.74 OF 2000 The State of Maharashtra, through Police Station Officer Shirpur …….APPELLANT …V E R S U S…1 Purushottam Sitaram Bakal, aged about : 27 years, 2 Sitaram Bhikaji Bakal aged about 55 years, 3 Dwarkabai w/o. Sitaram Bakal aged about : 50 years 4 Rameshwar Sitaram Bakal, aged about : 19 years, All residents of Tiwali, District. Washim ……RESPONDENTS Mr.H.D. Dhumale, Addl. Public Prosecutor for appellant.Mr. S.A. Bramhe, counsel for respondents.

ORAL JUDGMENT

1 The appellants in Criminal Appeal No. 17 of 2000 faced trial for offence punishable under sections 306 and 498A read with section 34 of Indian Penal Code (for short ‘IPC’). They have been acquitted of offence punishable under section 306 read with section 34 of IPC and have been convicted of offence punishable under section 498A read with section 34 of Indian Penal Code and are sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 500/. The State is challenging the acquittal of the accused for offence punishable under section 306 of IPC and accused are challenging the conviction under section 498A read with section 34 of IPC. Criminal Appeal 17 of 2000 and Criminal Appeal 74 of 2000, assailing the judgment dated 20.12.1999, in Session Trial 65 of 1997 delivered by Additional Sessions Judge, Washim, have been heard together and are decided by this common judgment.

2. Heard Shri. S.A. Bramhe, learned counsel for appellants in Criminal Appeal 17 of 2000 and Shri. H.R.Dhumale, learned Additional Public Prosecutor in Criminal Appeal 74 of 2000 for the State.

3. Saraswati, late wife of appellant 1, Purushottam (appellants shall be referred to as ‘accused’ hereinafter) expired on 22.5.1997 at village Tiwali. The prosecution contends that Sarswati committed suicide by consuming poison. Natthu Jadhav, the father of Sarswati lodged First Information Report (for short ‘FIR’) (Exh.23), on 23.5.1997, pursuant to which offence punishable under section 498A and 306 read with section 34 of IPC was registered at Shirpur Police Station.